MILK: DOES IT MEASURE UP?

A Report on the Accuracy of Net Content

Labeling of Milk and Other Products

A REPORT BY THE STAFF OF THE FEDERAL TRADE COMMISSION, FOOD AND CONSUMER SERVICE OF THE U.S.

DEPARTMENT OF AGRICULTURE, OFFICE OF WEIGHTS AND MEASURES OF THE NATIONAL INSTITUTE OF

STANDARDS AND TECHNOLOGY, AND OFFICE OF FOOD LABELING OF THE U.S. FOOD AND DRUG

ADMINISTRATION

BASED ON INSPECTIONS BY WEIGHTS AND MEASURES OFFICES IN THE STATES OF ALABAMA, CALIFORNIA,

DELAWARE, FLORIDA, IOWA, KANSAS, LOUISIANA, MARYLAND, MASSACHUSETTS, MINNESOTA, MISSISSIPPI,

MONTANA, NEW YORK, OKLAHOMA, TENNESSEE, TEXAS, UTAH, WASHINGTON, WEST VIRGINIA, AND WISCONSIN

JULY 17, 1997

Contributors to this Report

Bureaus of Consumer Protection and Economics, Federal Trade Commission *

Food and Consumer Service, U.S. Department of Agriculture

Office of Weights and Measures, National Institute of Standards and Technology

Office of Food Labeling, U.S. Food and Drug Administration

Weights and measures offices in the following twenty states:

Alabama, California, Delaware, Florida, Iowa, Kansas, Louisiana, Maryland, Massachusetts,

Minnesota, Mississippi, Montana, New York, Oklahoma, Tennessee, Texas, Utah,

Washington, West Virginia, and Wisconsin

Executive Summary

Each year, over six billion gallons of fluid milk are sold in the United States. State and local reports

of short-filling in packages of milk served in schools or sold in retail stores led to this joint

federal/state study to examine the accuracy of net content labeling of milk, and to a lesser extent,

other dairy products (such as yogurt and cottage cheese) and juice. This study was conducted by

the staff of the Federal Trade Commission, Food and Consumer Service at the U.S. Department of

Agriculture, the Office of Weights and Measures at the National Institute of Standards and

Technology in the Department of Commerce, and the Office of Food Labeling at the U.S. Food and

Drug Administration in coordination with state and local weights and measures offices.

For this study, twenty states, using an inspection procedure developed by the National Conference

on Weights and Measures, conducted over 1600 inspections of milk, other dairy products and juice.

Each inspection involved testing a group of packages referred to as the "inspection lot," which

consists of packages of the same product, in the same size, with the same label, from the same

packer and with the same expiration date. These inspections took place at 512 locations. At many

of the inspection sites, testing of multiple inspection lots took place. For example, in a single retail

store, inspection lots of whole milk, 2% milk, skim milk and cottage cheese may have been tested.

For an inspection lot to be approved, the quantity of contents of packaged goods must meet two

requirements under the testing protocol used. First, the average quantity of contents of packages in

the lot must equal or exceed the quantity printed on the label. Second, individual packages may not

be under-filled by an unreasonable amount, as defined in the testing protocol.

Overall, the inspections revealed widespread problems with short-filling of milk, other dairy

products and juice. Just over 40% of the 1638 inspection lots failed. Of the 858 lots of milk and

juice inspected at schools, universities and hospitals, almost one-half failed inspection. Of the 780

lots of milk and dairy products inspected in retail stores, packaging plants and dairies, almost

one-third failed inspection. Results of inspections varied widely from state to state and from

packager to packager. The results of this study cannot be statistically projected to the entire

country, but do strongly indicate widespread problems with under-filling of milk, other dairy

products, and juice.

When inspection lots of milk and other products were rejected, the average amount of shortage per

package ranged from less than 1% to 6% or more. Although these shortages represent only a

small amount per individual package of milk or juice, the aggregate shortages represent a

substantial amount of product over time. This causes economic losses to consumers and major

purchasers, such as school districts, hospitals and universities. Further, this short-filling affects the

milk and juice served with school breakfasts and lunches. In addition, retailers, wholesalers and

dairies experience business disruptions and sales losses when short-filled products are removed

from sale by government inspectors. Furthermore, injury to competition may result from inequities in

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the marketplace caused by short-filling of packages by some industry members.

This study shows that compliance with net content labeling requirements is in need of improvement.

Although compliance levels were very high at many dairies and packagers included in this study,

compliance levels at other facilities were poor or mixed. The study results suggest that inadequate

quality control in the packaging plants and a lack of strict oversight by manufacturers and

distributors is the cause of many short-filling problems. This study also indicates that active

oversight by state and local weights and measures offices can help increase compliance with net

content labeling requirements. State and local officials note, however, that resource constraints

have limited their ability to maintain consistent oversight in this area.

A major goal of this joint federal/state project is to inform industry of the problems that exist and to

provide information that will enable industry members to examine and, if necessary, reform their

packaging practices. The government participants in this study are hopeful that increased public

attention to the problem of short-filling will lead dairies, producers and packers to examine and

reform their packaging processes voluntarily. Through business education efforts and warnings,

government agencies will work with dairies and packagers to correct any problems found.

Packagers that, in the future, fail to pay sufficient attention to their manufacturing processes run the

risk of government enforcement actions with the possibility of fines, exclusions from government

contracts, and government mandates to change their practices. Federal, state and local officials

plan to continue to coordinate their efforts to monitor the accuracy of net content labeling of dairy

products and juice, as well as other foods.

Table of Contents

Executive Summary

Introduction

Federal and State Regulation

Organizations Participating in this Study

A. Bureau of Consumer Protection of the Federal Trade Commission

B. Food and Consumer Service of the U.S. Department of Agriculture

Office of Weights and Measures at the National Institute of Standards and

Technology and the National Conference on Weights and Measures

C.

D. Office of Food Labeling at the Food and Drug Administration

E. State Weights and Measures

Joint Federal/State Study

A. Study Methodology

B. Inspection Results

Chart 1: Disposition of Inspection by Type of Establishment

Chart 2: Disposition of Inspections by Product Type

Chart 3: Disposition of Inspections of Milk by Size of Container

Table 4: Average Percentage of Short-filling in Rejected Inspection Lots by Type of

Establishment and Type of Product

Table 5: Distribution of States by Inspection Approvals

Injury Caused by Inaccurate Net Content Labeling

Business Education

Conclusion

Endnotes

APPENDIX A: Supporting Data Tables for Charts

APPENDIX B: Summary Report by State & Establishment Type

APPENDIX C: Good Quantity Control Practices

Introduction

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In 1996, the dairy industry produced over six billion gallons of fluid milk. Dairy producers' revenues

from sales of fluid milk exceeded $8 billion. Recently, federal officials received scattered reports

from state and local officials and several media sources of possible short-filling of milk sold in retail

stores or served in schools.(1) To examine this issue more comprehensively, the staff of the Federal

Trade Commission (FTC) coordinated a project jointly with the Office of Weights and Measures at

the National Institute of Standards and Technology (NIST) in the Department of Commerce, Food

and Consumer Service (FCS) at the U.S. Department of Agriculture (USDA), the Office of Food

Labeling at the U.S. Food and Drug Administration (FDA) and state and local weights and

measures offices.

To obtain data on the accuracy of net content labeling, weights and measures officials in twenty

states visited 512 schools, universities, hospitals, retailers, dairies and packaging plants and

examined a total of 1638 inspection lots of milk, other dairy products and juice. An "inspection lot" is

the group of packages selected for inspection and consists of packages of the same product, with

the same label and from the same packer.(2) Overall, these inspections revealed significant

problems with short-filling. Just over 40% of the inspected lots failed. Of the 858 lots of milk and

juice inspected at schools, universities and hospitals, almost half, 411, failed inspection. Of the 780

lots of milk and other products inspected in retail stores, packaging plants and dairies, almost a

third, 255, failed inspection. Results of inspections varied widely from state to state and from

packager to packager.

Part Two of this report provides an overview of federal and state regulation of net content labeling.

The role of the organizations participating in this study is discussed in Part Three. Data from the

state inspections have been compiled for this report and are presented in Part Four. Part Five

discusses the adverse effects of short-filling on consumers, purchasers and industry. Parts Six and

Seven describe follow-up actions to be taken by federal and state agencies, including business

education and enforcement efforts.

Federal and State Regulation

Federal and state agencies share jurisdiction over net content labeling of dairy products and juice.

The Fair Package and Labeling Act (FPLA) and the Federal Food, Drug and Cosmetic Act require

that labels on packages of certain commodities, including food, identify the commodity, state the

name and place of business of the manufacturer, packer or distributor, and state the net quantity of

contents. Under the FPLA, FDA has enforcement responsibility with respect to food. 15 U.S.C.

§ 1456(a). In addition, food packages with incorrect content disclosures are considered

"misbranded" pursuant to the Federal Food, Drug and Cosmetic Act, also enforced by the FDA. 21

U.S.C. § 343(e). The FTC retains concurrent jurisdiction over food labeling under Section 5 of the

FTC Act. 15 U.S.C. § 45. Inaccurately disclosing content on food packages is a deceptive act or

practice that violates Section 5.

Historically, state and local weights and measures offices have taken primary responsibility for

ensuring the accuracy of food labeling. State and local officials conduct inspections at every step in

the process of manufacturing, distributing and selling packaged goods. States' authority to enforce

their laws and regulations relating to net content labeling is subject to two caveats. First, under the

FPLA, state laws cannot be "less stringent than or require information different from" the

requirements of the FPLA. 15 U.S.C. § 1461. Second, since November 8, 1991, the Nutrition

Labeling and Education Act (NLEA) of 1990(3) has preempted state and local laws that are not

"identical" to certain corresponding FDA labeling requirements. 21 U.S.C. § 343-1(a)(2). Thus,

labeling requirements for food products are the same throughout the country. FDA has proposed a

rule on net content labeling of foods that incorporates the inspection procedure used in this study,

which is discussed in more detail below, and which would serve to codify current state labeling

requirements and inspection practices.

Organizations Participating in this Study

The roles and interests of each of the organizations participating in this study are described below.

A. Bureau of Consumer Protection of the Federal Trade Commission

The Federal Trade Commission is a law enforcement agency charged by Congress to protect the

public against deceptive or unfair practices and anticompetitive behavior. The FTC, through its

Bureau of Consumer Protection, has been involved in issues concerning packaging and labeling for

many years. The FTC has been responsible for enforcement of the FPLA, adopted in 1966, with

respect to consumer commodities, excluding food as well as drugs, devices, and cosmetics. Under

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Section 5 of the FTC Act, the FTC also has authority to take action against inaccurate net content

statements on all commodities as deceptive practices and can seek remedies ranging from a cease

and desist order to redress for consumers injured by deceptive practices.

The FTC's interest in labeling accuracy stems from its role in protecting consumers from deceptive

practices. Because reports of short-filling of milk have come from a number of states across the

country (for example, Colorado, Indiana and Minnesota) and have involved products that are

purchased using federal monies, FTC staff coordinated an investigation of this issue with

colleagues at NIST, USDA, FDA and the states. Staff of the FTC's Bureaus of Consumer Protection

and Economics worked closely with federal and state officials in coordinating, collecting and

compiling the information for this report.

B. Food and Consumer Service of the U.S. Department of Agriculture

Working in partnership with the states, Food and Consumer Service of the USDA seeks to provide

needy persons with access to a more nutritious diet. FCS oversees the fifteen food assistance

programs of USDA. States determine most administrative details regarding distribution of food

benefits and the eligibility of participants, and FCS funds cover most of the states' administrative

costs.

USDA's major food assistance programs targeted to school age children include the National

School Lunch Program and the School Breakfast Program. Each school day, the National School

Lunch Program serves about 26 million children in over 93,000 schools. More than half of these

children receive the meal free or at a reduced price. Almost 61⁄2 million children participate in the

School Breakfast Program. About 80% of school breakfasts are served free.(4)

USDA has a strong interest in the accuracy of net content labeling of milk and juice. In particular,

USDA regulations require that eight ounces of milk be offered with every subsidized school

breakfast or lunch. In 1996, USDA subsidized approximately 51⁄2 billion school breakfasts and

lunches. If milk or juice supplied to schools is short-filled, USDA can seek administrative remedies

ranging from restitution and corrective actions by the dairy or juice producer through suspension

and debarment of the dairy or juice producer from future federal non-procurement contracts.(5)

C. Office of Weights and Measures at the National Institute of Standards and Technology and the National Conference on

Weights and Measures

NIST, in the Department of Commerce, was established by Congress to support industry,

commerce, scientific institutions and all branches of government. The Office of Weights and

Measures (OWM) at NIST works to promote uniformity among the states in weights and measures

standards, laws and practices to facilitate trade and protect businesses and consumers. OWM

sponsors the National Conference on Weights and Measures (NCWM), a voluntary standards

organization of state weights and measures officials and representatives of industry, consumers

and federal agencies. NCWM's goal is to achieve uniformity in laws, regulations and other

procedures through local adoption of its standards. NIST and NCWM work closely with industry

members to promote equity in the marketplace and improve industry practices in matters involving

weights and measures.

In 1981, NCWM adopted NIST Handbook 133.(6) This handbook was prepared by NCWM and

NIST as a procedural guide for compliance testing of net content statements on packaged goods,

in other words, to check whether the stated net content on the package conforms to federal and

state legal requirements for net content declarations. Almost all states currently use the procedures

set forth in NIST Handbook 133 to examine net content labeling.(7) Because there have been some

minor revisions to NIST Handbook 133 since 1981, NIST and NCWM have recommended that all

states adopt the most recent version of NIST Handbook 133 (Third Edition, Supplement 4, adopted

in 1994) to ensure uniformity across the country. In doing so, the states would also conform to

proposed federal requirements on net content labeling as set forth in a proposed FDA rule, which is

discussed below.

OWM has worked closely with the states in the development and implementation of this joint

federal/state project by providing training and equipment and assisting the states throughout this

project. In early March, the twenty states participating in this study sent weights and measures

inspectors to a five-day OWM training session, which focused on inspections of dairy products and

juice using the procedures set forth in NIST Handbook 133. In addition, OWM purchased and then

lent measuring equipment to several states participating in this project.

D. Office of Food Labeling at the Food and Drug Administration

FDA enforces the FPLA and the Federal Food, Drug and Cosmetic Act with respect to food and

food packages by requiring that net content declarations be accurate. Food products with incorrect

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content statements are considered "misbranded" pursuant to these acts. 14 U.S.C. § 1456(a) and

21 U.S.C. § 343(e). Violations of the Acts can result in seizure of the products by FDA.

Alternatively, the dairy or juice producer can initiate a recall of the violative products.

On March 4, 1997, the FDA's Office of Food Labeling published proposed revisions to FDA's food

labeling regulations that pertain to declaration of net quantity of contents on food packages. 62

Fed. Reg. 9826 (1997) (to be codified at 21 C.F.R. §§ 101, 161 and 501). The proposed FDA rule,

which is essentially identical to NIST Handbook 133, would establish specific procedures for

checking conformance to net content labeling requirements nationwide. Since almost all states

currently use the procedures in NIST Handbook 133, the adoption of the proposed rule would

codify existing state practices pertaining to the net content labeling of foods. The inspections that

are the subject of this report followed the NIST Handbook 133 procedure and thus conformed to

the proposed FDA rule.

E. State Weights and Measures

State and local weights and measures officials work to promote equity and fair competition in the

marketplace. Their goal is to ensure that transactions based on weight, measure or count are

accurate and that goods are sold in a manner that facilitates value comparison by consumers.

Weights and measures officials are responsible for enforcing state and local laws that require

commercial weighing and measuring devices to be accurate. For example, they check the accuracy

of gasoline dispensers, food store scales, and checkout scanners. They are also responsible for

ensuring that the net content declarations on packages of food and other commodities are

accurate. In view of their multiple responsibilities, state and local weights and measures officials

note that resource constraints have limited their ability to maintain a consistent enforcement

presence in all areas of responsibility.

For this study, weights and measures officials in twenty states agreed to examine the accuracy of

net content statements on packages of milk, other dairy products and juice. The states were

trained by NIST staff in using the NIST Handbook 133 procedure and had the appropriate

measuring equipment. In April and May 1997, weights and measures officials conducted

inspections of dairy products and juice in schools, state and federal facilities, retail stores,

packaging plants and dairies. The twenty participating states were Alabama, California, Delaware,

Florida, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Montana,

New York, Oklahoma, Tennessee, Texas, Utah, Washington,(8) West Virginia and Wisconsin.

Joint Federal/State Study

This study was prompted by recent reports from several states of problems with short-filling of milk

and juice served in schools or sold in retail stores. A preliminary inquiry revealed that federal, state

and local inspections of net content labeling of dairy products and juice have been infrequent. Some

states have periodically checked milk and other dairy products sold to consumers, but few states

have regularly inspected milk or juice served in schools or in state and federal facilities, such as

universities and hospitals.

To identify the scope of possible problems in the packaging of dairy products and juice, staff of the

FTC, USDA, NIST and FDA worked with weights and measures inspectors in twenty states that

were chosen for wide geographic coverage. Over a three-week period in April and May 1997,

weights and measures inspectors conducted 1638 inspections of dairy products and juice served in

296 schools and state and federal facilities and sold by 216 retailers, packagers and dairies.

State weights and measures officials selected the sites where dairy products and juice were

inspected. Based on available resources, each state attempted to visit as many different sites as

possible across the state. Selections were not based on any prior history of inspection results.

Although the results of this study cannot be statistically projected, the total number of inspections is

large and provides a good overall view of industry's compliance with net content labeling

requirements.(9)

Inspection results varied widely from packager to packager and dairy to dairy. A number of

packagers and dairies included in this study were largely in compliance with net content labeling

requirements. Many of the inspection lots that were approved contained slightly more than the

labeled quantity, in other words, were slightly overfilled. On the other hand, a number of packagers

and dairies were not in compliance with net content labeling requirements. As discussed below, this

study indicates widespread problems with under-filling of milk, other dairy products and juice.

A. Study Methodology

The inspections were conducted in accordance with procedures set forth in NIST Handbook 133.

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The goal of compliance testing of packaged goods, as stated in the handbook, is to ensure that the

consumer/purchaser receives the labeled quantity of contents and to advise the manufacturer when

improvements in the packaging process are necessary. Although the handbook was developed

primarily for use by government officials, it can be useful to commercial and industrial

establishments involved in the packaging, distribution and sale of commodities.(10) For example, the

procedures set forth in the handbook can form the basis for systematic inspections of net content

labeling by manufacturers, wholesalers, distributors and retailers.

NIST Handbook 133 provides procedures using statistical sampling techniques to examine individual

lots of packages for conformance with legal requirements. The handbook provides for random

sampling of packages from an inspection lot. For example, all gallons of Brand X whole milk with

the same expiration date could be considered an inspection lot. The random sample of packages is

measured, using specific procedures and equipment, to determine whether the packages are

over-filled or under-filled.

For the lot to pass inspection, the random sample of packages must meet two requirements. First,

the contents of the random sample of packages must, on average, equal or exceed the amount of

product stated on the label.(11) Second, there cannot be any unreasonable variation in the amount

of contents in individual packages. This means, for example, that for an inspection lot of 200 gallons

of milk where a random sample of 12 packages has been selected for testing, the lot would fail

inspection if any one of the tested packages were under-filled by more than 21⁄2 fluid ounces.(12)

B. Inspection Results

Inspection results for 1638 lots of milk, other dairy products and juice in schools, universities,

hospitals, retail outlets, packaging plants and dairies in twenty states were tabulated by state,

establishment type and product type. The establishments visited were divided into four categories:

schools, state/federal facilities (for example, universities and VA hospitals), retailers and

packagers/dairies. The inspected products were divided into three categories: milk (regular white

or chocolate milk: whole, low-fat or skim), juice (100% juice and juice drinks), and other dairy

products (buttermilk, lactose-reduced milk, flavored milks, acidophilus milk, milk shakes, cottage

cheese, yogurt, sour cream, half and half and cream, non-dairy drinks, and non-dairy creamers).

Chart 1: Disposition of Inspection by Type of Establishment

See Appendix A for Supporting Data Table

Overall, 40.66% (666) of the 1638 lots of milk, other dairy products and juice inspected in

this study failed due to short-filling. Close to one-half, 47.90%, of all lots inspected at

schools and state and federal institutions failed due to short-filling. Almost one-third,

32.69%, of inspected lots at retailers and packagers/dairies failed inspection.

Chart 2: Disposition of Inspections by Product Type

See Appendix A for Supporting Data Table

There was a wide variation in the percentages of approvals and rejections among the

different product categories. For milk (regular and chocolate), 45.74% of all inspection lots

failed. Almost one-fourth of inspection lots of juice and juice drinks failed inspection. Just

under one-fifth of inspection lots of other dairy products were rejected.

Chart 3: Disposition of Inspections of Milk by Size of Container

See Appendix A for Supporting Data Table

Inspectors examined milk packaged in quarter-pints, half-pints, pints, quarts, half-gallons and

gallons.(13) The rate of approvals of lots ranged from a high of 100% for 10 oz. containers to

a low of 25% for 4 oz. containers. The highest approval rates were found in gallons and 10

oz. containers. The lowest approval rates were found in 4 oz., half-pint and quart containers.

Approval rates for pints and half-gallons fell in between and were almost the same.

Table 4:

Average Percentage of Short-filling in Rejected Inspection Lots

by Type of Establishment and Type of Product

Type of Establishment Milk Juice Other Dairy All Products

Schools -1.54% -1.62% -3.11%* -1.55%

State/Federal Facilities -1.28% -0.29%* -0.45%* -1.24%

Retailers -0.51% -0.38%* -0.66% -0.52%

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Packagers/Dairies -0.70% -2.06%* -0.39% -0.70%

Total -0.76% -1.67% -0.42% -0.76%

*Fewer than 5 inspection lots are included in this calculated average percentage.

Table 4 shows the percentage of short-fill in rejected inspection lots by establishment type and

product type.(14) Overall, the percentage of short-fill in all rejected inspection lots is .76%. Rejected

lots in schools and state and federal facilities have the highest percentage of short-fill, 1.55% and

1.24% respectively. The percentage of short-fill in the rejected school inspections exceeds 1.50%

in all three product categories. Looking across all establishment types at the three product

categories, rejected lots of juice have the highest percentage of short-fill, followed by milk and

other dairy products.

Table 5:

Distribution of States by Inspection Approvals

% of Inspections Lots

Approved Number of States States (Total # of Inspection Lots)

20 - 29% 1 Iowa (103)

30 - 39% 1 Utah (49)

40 - 49% 6 Kansas (74), Louisiana (63), Massachusetts (47), Montana

(80), New York (204), Texas (65)

50 - 59% 2 Mississippi (12), Oklahoma (106), Wisconsin (38)

60 - 69% 3 Tennessee (140), Washington (51)

70 - 79% 2 California (147), West Virginia (79)

80 - 89% 4 Alabama (12), Florida (102), Maryland (177), Minnesota

(71)

90%+ 1 Delaware (18)

Individual states conducted from 12 to 204 inspections. Seven of the states — California, Florida,

Iowa, Maryland, New York, Oklahoma and Tennessee — inspected over 100 lots of milk, juice and

other dairy products. The percentage of lots that passed inspection in each state ranged from a

low of 25.24% in Iowa to a high of 94.44% in Delaware. Eight of the states had approval rates that

were less than 50%.(15) Several of the states with higher levels of inspection approvals, such as

Delaware, Florida, Maryland and Minnesota, have recently conducted inspections of milk in

schools, retail stores and/or dairies. It appears that an ongoing enforcement presence alerts

industry members that problems may exist. Thus informed, dairies and packagers can assess the

adequacy of their quantity control practices, and distributors, wholesalers and retailers can choose

to exercise closer oversight of their suppliers.

Injury Caused by Inaccurate Net Content Labeling

The primary injury caused by short-filling of dairy products and juice is economic, that is, consumers

and schools are paying for product they do not receive. The amount of short-filling of any individual

carton of milk or juice in this study ranged from less than 1% to more than 6%, but, with billions of

government and consumer dollars spent on these products, the value of the missing milk and juice

adds up quickly.

USDA reports that 6.64 billion gallons of fluid milk were sold in 1996.(16) Dairy producers' revenues

from sales of fluid milk exceeded $8 billion. Although much of this milk is sold at retail stores to

consumers, substantial amounts of milk are purchased by federal and state agencies for

consumption at schools, universities, hospitals, and federal facilities such as VA hospitals and

soldiers' homes. For example, FCS estimates that, in fiscal 1996, six billion cartons of milk were

purchased for federal child nutrition programs, including the National School Lunch Program, School

Breakfast Program, Special Milk Program, Summer Food Service Program and Child Care

Program.

A failure to ensure accuracy of net content labeling can also be detrimental to industry members.

When short-filling is found in retail stores or at the bottling plant or dairy, a usual consequence is

that the weights and measures inspector orders the short-filled products "off-sale," which means

removing them from store shelves and prohibiting their sale. Consequently, retail stores experience

disruptions in sales due to empty shelves, and packaging plants and dairies suffer financial losses,

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as well as disruptions in their production efforts. Injury to competition may also result from

inequities in the marketplace due to short-filling by some industry members. For example, a

company that fills its packages in full compliance with the law is at a competitive disadvantage if

competing companies short-fill their packages (thereby reducing their production costs).

Furthermore, industry members that fail to comply with the law can be subject to fines and other

legal sanctions.(17)

Business Education

A major goal of this joint federal/state report is to inform industry of the problems that exist and to

provide information that will enable industry members to examine and, where necessary, reform

their packaging practices. All dairies and packagers included in this study will be notified of the

study results, and federal and state agencies will work with dairies and juice producers to correct

any problems found. In addition, the participants in this project have developed a "Facts for

Business" pamphlet that will be distributed to dairies, producers, packers, wholesalers, distributors

and retailers across the country.(18) Industry members will receive information on federal and state

requirements regarding the accuracy of net content labeling, as well as the names and addresses

of federal and state officials who can assist industry members in complying with these

requirements.

An NCWM working group, comprised of government and industry, has drafted a list of good

quantity control practices that is being considered by NCWM for publication in NIST Handbook 130,

titled "Uniform Laws and Regulations." This set of quantity control practices is attached to this

report as Appendix C and provides step-by-step guidance for dairies and packagers that want to

assess and improve their manufacturing practices. Copies of these good quantity control practices

will be distributed to industry members. In addition, NIST and NCWM will offer training sessions to

industry members on good inspection, packaging and distribution practices.

Furthermore, USDA has requested that its state administering agencies send letters to each of the

20,000 State Food Authorities (SFAs) who are responsible for contracting with dairies and

distributors for purchases of milk and juice and other foods for school breakfasts and lunches.

These letters will provide information on this study and actions that should be taken if short-filling

recurs. SFAs will be encouraged to contact state and local weights and measures offices for

assistance.

Conclusion

This study shows that compliance with net content labeling requirements needs improvement.

Although compliance levels were very high at many dairies and packagers included in this study,

compliance levels at other facilities were poor or mixed. The government participants in this study

are hopeful that increased public attention to the problem of short-filling and short-weighting will

lead dairies and other packagers to examine and reform their packaging processes voluntarily. The

inspections conducted in this study have already resulted in enforcement actions by some states. A

number of states participating in this study ordered non-complying lots of milk, juice and other dairy

products off-sale at retail stores, packaging plants and dairies. Some states are considering

whether fines or other enforcement actions are appropriate. Additional unannounced inspections of

net content labeling of milk, juice and other foods may also take place. Industry members that fail

to pay sufficient attention to their manufacturing processes run the risk of government enforcement

actions with the possibility of fines, exclusions from government contracts, and government

mandates to change their practices. In the future, federal, state and local officials will continue to

coordinate their efforts to monitor the accuracy of net content disclosures, and may take

enforcement actions if additional significant problems with short-filling are found.

APPENDIX A:

Supporting Data Tables for Charts

Table 1: Disposition of Inspections by Type of Establishment

Type of Establishment Number of Sites

Visited

Disposition of

Inspection

Number of

Inspection Lots

Percentage of

Inspection Lots

Schools 264 Approved

Rejected

388

364

752

51.60%

48.40%

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State/Federal Facilities 32 Approved

Rejected

59

47

106

55.66%

44.34%

Retailers 138 Approved

Rejected

298

142

440

67.73%

32.27%

Packagers/Dairies 78 Approved

Rejected

227

113

340

67.76%

33.24%

All Establishments 512 Approved

Rejected

972

666

1638

59.34%

40.66%

Table 2: Disposition of Inspections by Product Type

Type of Product Disposition of Inspection Number of

Inspection Lots

Percentage of Inspection

Lots

Milk Approved

Rejected

701

591

1292

54.26%

45.74%

Juice Approved

Rejected

155

47

202

76.73%

23.27%

Other Dairy Approved

Rejected

116

28

144

80.56%

19.44%

Table 3: Disposition of Inspections of Milk by Size of Container

Size of Container Disposition of Inspection Number of Inspection

Lots

Percentage of Inspection

Lots

4 oz./118 mL Approved

Rejected

1

3

4

25.00%

75.00%

8 oz./235 mL

(half-pint)

Approved

Rejected

356

391

747

47.66%

52.34%

10 oz./295 mL Approved

Rejected

8

0

8

100.00%

0.00%

16 oz./473 mL

(pint)

Approved

Rejected

35

24

59

59.32%

40.68%

32 oz./946 mL

(quart)

Approved

Rejected

54

52

106

50.94%

49.06%

64 oz./1.89 L

(half-gallon)

Approved

Rejected

140

93

213

60.09%

39.91%

128 oz./3.78 L

(gallon)

Approved

Rejected

107

28

135

79.26%

20.74%

APPENDIX B:

Summary Report by State and Establishment Type

Alabama

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

5

0

5

100.00%

0.00%

Retailers Approved

Rejected

5

2

7

71.43%

28.57%

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All Establishments Approved

Rejected

10

2

12

83.33%

16.67%

California

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

27

11

38

71.05%

28.95%

State/Federal Facilities Approved

Rejected

17

9

26

65.38%

34.62%

Retailers Approved

Rejected

41

9

50

82.00%

18.00%

Packagers/Dairies Approved

Rejected

25

8

33

75.76%

24.24%

All Establishments Approved

Rejected

110

37

147

74.83%

25.17%

Delaware

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

11

0

11

100.00%

0.00%

Retailers Approved

Rejected

4

1

5

80.00%

20.00%

Packagers/Dairies Approved

Rejected

2

0

2

100.00%

0.00%

All Establishments Approved

Rejected

17

1

18

94.44%

5.56%

Florida

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

26

7

33

78.79%

21.21%

Packagers/Dairies Approved

Rejected

61

8

69

88.41%

11.59%

All Establishments Approved

Rejected

87

15

102

85.29%

14.71%

Iowa

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

15

71

86

17.44%

82.56%

Retailers Approved

Rejected

2

0

2

100.00%

0.00%

Packagers/Dairies Approved

Rejected

9

6

15

60.00%

40.00%

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All Establishments Approved

Rejected

26

77

103

25.24%

74.76%

Kansas

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

16

18

34

47.06%

52.94%

State/Federal Facilities Approved

Rejected

7

13

20

35.00%

65.00%

Retailers Approved

Rejected

12

8

20

60.00%

40.00%

All Establishments Approved

Rejected

35

39

74

47.30%

52.70%

Louisiana

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

11

14

25

44.00%

56.00%

State/Federal Facilities Approved

Rejected

2

0

2

100.00%

0.00%

Retailers Approved

Rejected

8

13

21

38.10%

61.90%

Packagers/Dairies Approved

Rejected

7

8

15

46.67%

53.33%

All Establishments Approved

Rejected

28

35

63

44.44%

55.56%

Massachusetts

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

6

11

17

35.29%

64.71%

State/Federal Facilities Approved

Rejected

2

6

8

25.00%

75.00%

Retailers Approved

Rejected

2

2

4

50.00%

50.00%

Packagers/Dairies Approved

Rejected

10

8

18

55.56%

44.44%

All Establishments Approved

Rejected

20

27

47

42.55%

57.45%

Maryland

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

58

3

61

95.08%

4.92%

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Retailers Approved

Rejected

57

18

75

76.00%

24.00%

Packagers/Dairies Approved

Rejected

28

13

41

68.29%

31.71%

All Establishments Approved

Rejected

143

34

177

80.79%

19.21%

Minnesota

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

13

3

16

81.25%

18.75%

State/Federal Facilities Approved

Rejected

7

0

7

100.00%

0.00%

Retailers Approved

Rejected

19

4

23

82.61%

17.39%

Packagers/Dairies Approved

Rejected

20

5

25

80.00%

20.00%

All Establishments Approved

Rejected

59

12

71

83.10%

16.90%

Mississippi

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

7

5

12

58.33%

41.67%

All Establishments Approved

Rejected

7

5

12

58.33%

41.67%

Montana

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

16

15

31

51.61%

48.39%

State/Federal Facilities Approved

Rejected

0

3

3

0.00%

100.00%

Retailers Approved

Rejected

9

13

22

40.91%

59.09%

Packagers/Dairies Approved

Rejected

12

12

24

50.00%

50.00%

All Establishments Approved

Rejected

37

43

80

46.25%

53.75%

New York

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

50

84

134

37.31%

62.69%

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State/Federal Facilities Approved

Rejected

4

9

13

30.77%

69.23%

Retailers Approved

Rejected

26

25

51

50.98%

49.02%

Packagers/Dairies Approved

Rejected

4

2

6

66.67%

33.33%

All Establishments Approved

Rejected

84

120

204

41.18%

58.82%

Oklahoma

Type of

Establishment

Disposition Number of

Inspection Lots

Results

Schools Approved

Rejected

19

30

49

38.78%

61.22%

Retailers Approved

Rejected

22

15

37

59.46%

40.54%

Packagers/Dairies Approved

Rejected

12

8

20

60.00%

40.00%

All Establishments Approved

Rejected

53

53

106

50.00%

50.00%

Tennessee

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

28

22

50

56.00%

44.00%

State/Federal Facilities Approved

Rejected

6

2

8

75.00%

25.00%

Retailers Approved

Rejected

36

4

40

90.00%

10.00%

Packagers/Dairies Approved

Rejected

25

17

42

59.52%

40.48%

All Establishments Approved

Rejected

95

45

140

67.86%

32.14%

Texas

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

18

27

45

40.00%

60.00%

State/Federal Facilities Approved

Rejected

3

1

4

75.00%

25.00%

Retailers Approved

Rejected

6

6

12

50.00%

50.00%

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Packagers/Dairies Approved

Rejected

0

4

4

0.00% 100.00%

All Establishments Approved

Rejected

27

38

65

41.54%

58.46%

Utah

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

9

16

25

36.00%

64.00%

State/Federal Facilities Approved

Rejected

1

4

5

20.00%

80.00%

Retailers Approved

Rejected

8

3

11

72.73%

27.27%

Packagers/Dairies Approved

Rejected

1

7

8

12.50%

87.50%

All Establishments Approved

Rejected

19

30

49

38.78%

61.22%

Washington

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

21

15

36

58.33%

41.67%

State/Federal Facilities Approved

Rejected

7

0

7

100.00%

0.00%

Packagers/Dairies Approved

Rejected

4

4

8

50.00%

50.00%

All Establishments Approved

Rejected

32

19

51

62.75%

37.25%

West Virginia

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

24

4

28

85.71%

14.29%

Retailers Approved

Rejected

30

11

41

73.17%

26.83%

Packagers/Dairies Approved

Rejected

7

3

10

70.00%

30.00%

All Establishments Approved

Rejected

61

18

79

77.22%

22.78%

Wisconsin

Type of Establishment Disposition Number of Inspection Lots Results

Schools Approved

Rejected

8

8

16

50.00%

50.00%

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State/Federal Facilities Approved

Rejected

3

0

3

100.00%

0.00%

Retailers Approved

Rejected

11

8

19

57.89%

42.11%

All Establishments Approved

Rejected

22

16

38

57.89%

42.11%

APPENDIX C:

Good Quantity Control Practices

GOOD QUANTITY CONTROL PRACTICES

Good Quantity Control Practices means that the plant managers should take all reasonable

precautions to ensure the following quantity control standards or their equivalent are met:

1. A formal quantity control function is in place with authority to review production processes and

records, investigate possible errors, and approve, control, or reject lots.

2. Adequate facilities (e.g., equipment standards and work areas) for conducting quantity control

functions are provided and maintained.

3. A quantity control program (e.g., a system of statistical process control) is in place and

maintained.

4. Sampling is conducted at a frequency appropriate to the product process to ensure that the data

obtained is representative of the production lot.

5. Production records are maintained to provide a history of the filling and net content labeling of

the product.

6. Each "production lot" contains on the average the labeled quantity, and the number of packages

exceeding the specified maximum allowable variation (MAV) value in the inspection sample shall be

no more than permitted in Tables 2-1 and 2-2 in NIST Handbook 133.

7. Packaging practices are appropriate for specific products, and measurement procedures (e.g.,

quantity sampling, density and tare determinations) and guidelines for recording and maintaining

test results are documented.

8. Personnel responsible for quantity control follow written work instructions and are competent to

perform their duties (e.g., background, education, experience and training). Training is conducted at

sufficient intervals to ensure good practices.

9. Recognized procedures are used for the selection, maintenance, adjustment, and testing of filling

equipment to ensure proper fill control.

10. Weighing and measuring devices are suitable for their intended purpose, and measurement

standards are suitable and traceable to national standards. This includes a system of equipment

maintenance and calibration to include record keeping procedures.

11. Controls over automated data systems and software used in quantity control ensures that

information is accessible, but changeable only by authorized personnel.

12. Tare materials are monitored for variation. Label changes are controlled to ensure net quantity

matches labeled declaration.

Endnotes

* This Report represents the views of the staff of the Federal Trade Commission. It does not necessarily represent the views of the

Federal Trade Commission or individual Commissioners.

1. The term "short-filling" refers to packages that contain less than the labeled quantity of contents in terms of volume, such as fluid

ounces or milliliters. The term "short-weighting" refers to packages that contain less than the labeled quantity of contents in terms of

weight, such as pounds. In this report, the term short-filling will encompass both short-filling and short-weighting.

2. To the extent possible, an inspection lot consists only of packages packed at the same place, at the same time, and under the same

conditions. Packages of milk, for example, are sorted by the expiration or "sell by" date. Thus, quarts of whole milk in paper cartons

from Dairy A with a May 15 expiration date could be treated as one lot for inspection purposes. The size of an inspection lot might vary

from less than a dozen packages in a retail store to thousands of packages at a packing plant. Under the inspection protocol used in

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this study, a random sample of packages was selected from the inspection lot and tested for accuracy. For example, if the lot size was

12 to 250 packages, a random sample of 12 packages was tested for accuracy. If the lot size was 251 to 3200 packages, a random

sample of 24 packages was selected and tested.

3. The NLEA amended the Federal Food, Drug and Cosmetic Act to require, inter alia, nutrition labeling on foods. 21 U.S.C. § 343.

4. FCS Program Information Report, March 1997.

5. In contrast to federal procurement contracts in which the federal government is the direct purchaser, federal non-procurement

contracts are those in which another party receives federal funds to pay for purchases. Federal non-procurement contracts include

school districts' purchases of milk and juice for federally subsidized breakfasts and lunches.

6. NIST Handbook 133 replaced NBS Handbook 67, which was adopted by NIST's predecessor, the National Bureau of Standards, in

1959. Weights and measures and other public officials, manufacturers, packagers, retailers and trade associations participated in the

development of both NBS Handbook 67 and NIST Handbook 133.

7. As of July 1997, 36 states have adopted NIST Handbook 133 as a law or regulation, and 11 states and the District of Columbia use

the procedures in NIST Handbook 133 as a guideline. One state has adopted NBS Handbook 67. The two remaining states currently do

not use the procedures in NIST Handbook 133.

8. Weights and measures inspectors in the Consumer Affairs Unit, City of Seattle, Washington, also participated in this study.

9. The results cannot be statistically projected to the entire country because the inspection sites were not randomly selected and the

20 states participating in this study are not necessarily representative of all 50 states.

10. For copies of NIST Handbook 133, contact: Office of Weights and Measures, NIST North (Bldg 820), Room 223, Gaithersburg, MD

20899; (301) 975-4004; Fax: (301) 926-0647.

11. The testing procedure uses a sampling technique and allows for reasonable variations. Even when a packaging plant has good

manufacturing practices in place, there will be some variation in fill from package to package. The NIST procedure recognizes this fact

and includes mathematical calculations that provide a 97% confidence level that the lot is correctly approved or rejected. In other

words, there is a 97% likelihood that the average contents of the selected random sample accurately represents the average contents

of the entire lot of packages.

12. NIST Handbook 133 lists the "maximum allowable variation," or MAV, for different labeled contents. For example, for half-pints, the

MAV is 0.38 fluid ounces, and for half-gallons, the MAV is 1.5 fluid ounces. For lots consisting of 3200 packages or less, if a single

package in the random sample exceeds the MAV, the lot fails inspection. For lots with more than 3200 items, the handbook permits one

package in the random sample to exceed the MAV.

13. In this table, the container sizes are listed by fluid ounces. On the packages, volume is given in metric measurements as well.

Occasionally, the metric measurement is slightly greater than the fluid ounce measurement. For example, a container of milk may be

labeled as containing 8 fluid ounces and 240 milliliters. Under the NIST 133 procedure, the contents of the package must equal the

higher of the two stated volumes. Because 240 milliliters equals about 8.1 fluid ounces, an inspector uses the higher milliliter statement

in determining the accuracy of the net content labeling of the package.

14. The percentages have been calculated on a weighted basis. In other words, the calculated percentage equals the total volume of

short-fill in rejected lots divided by the total labeled content in the rejected lots.

15. A list of the numbers and percentages of approvals and rejections on a state-by-state basis is attached as Appendix B.

16. This equals an annual per capita consumption of 24.8 gallons of fluid milk.

17. State laws and regulations require that each food package bear the name of the party responsible for the net content statements on

the package. For example, Distributor X contracts with several dairies to package flavored milk and the packages bear the name of

Distributor X as the party responsible for the net content statements on the packages. In other instances, the dairy may be the party

responsible for the net content statements. Government fines and sanctions for short-filling are generally imposed against the named

responsible party.

18. For copies of this report and "Facts for Business," contact: Consumer Response Center, Federal Trade Commission, Washington,

D.C. 20580; (202) 326-2222 or TDD (202) 326-2502. The report and "Facts for Business" can also be found at www.ftc.gov on the

Internet.

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